Murphy v. Englehardt et al
ORDER - the Court DENIES AS MOOT Defendant's Motion to Dismiss 10 , GRANTS the Motion to Withdraw as Counsel 23 and GRANTS IN PART plaintiff's Motion for Leave to File an Amended Complaint 26 . Plaintiff shall file her Amended Complaint and Fed.R.Civ.P. 26 disclosures within five (5) days of the date of this Order. Counsel are directed to contact the MAP Coordinator directly to reschedule the mediation. Signed on 8/15/17 by District Judge Fernando J. Gaitan, Jr. (Enss, Rhonda)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
) Case No.: 4:16-CV-04255-FJG
Currently pending before the Court is defendants’ Motion to Dismiss (Doc. # 10),
Lynnette Lockhart’s Motion to Withdraw As Counsel for Defendants (Doc. #23) and
plaintiff’s Motion for Leave to File Second Amended Complaint (Doc. # 26).
Plaintiff’s initial Complaint was filed on October 19, 2016. In her Complaint,
plaintiff alleged claims against the Missouri State Highway Patrol and officer A.A.
Engelhardt for excessive force in violation of 42 U.S.C. § 1983 and state law claims for
assault and battery. The Missouri State Highway Patrol filed a Motion to Dismiss
alleging that the Eleventh Amendment bars plaintiff’s §1983 claim and sovereign
immunity bars the plaintiff’s state law claims of assault and battery. Plaintiff was initially
proceeding pro se in this action. On August 7, 2017, counsel entered an appearance
on plaintiff’s behalf. The same day, counsel for plaintiff also filed a Motion for Leave to
File an Amended Complaint and a Stipulation of Dismissal as to the Missouri Highway
In French v. Central Credit Services, No. 4:16CV1654RLW, 2017 WL 3105848
(E.D.Mo. July 20, 2017), the Court stated:
Under Rule 15(a)(2) of the Federal Rules of Civil Procedure, the court
should freely grant leave to amend a pleading when justice so requires.
“[T]he court has broad discretion and will only deny leave to amend in
order to avoid undue delay, where there has been bad faith on the part of
the plaintiff, when amendment would be futile or when amendment would
result in unfair prejudice to the defendants.” Swider v. Hologic, Inc., Civ.
No. 12-1547 (DSD/AJB), 2012 WL 6015558 at *2 (D.Minn. Dec. 3,
Id. at *1.
In the instant case, the deadline for filing amended pleadings has not passed and
plaintiff indicates that there is no opposition from defendant to filing an amended
complaint. Accordingly, for good cause shown, plaintiff’s Motion for Leave to File an
Amended Complaint is hereby GRANTED. Plaintiff should file an Amended Complaint
within five (5) days of the date of the Order. In the motion for leave to file an Amended
Complaint, plaintiff also requests leave to file her initial Fed.R.Civ.P. 26 disclosures out
of time. For good cause shown and with no opposition indicated, plaintiff shall also file
her Fed.R.Civ.P. 26 disclosures within five (5) days of the date of this Order.
In the Motion requesting leave to file an Amended Complaint, plaintiff also
requests that the Court enter an Amended Mediation and Assessment Order, so that a
new mediation date can be scheduled. Counsel are directed to contact the Mediation
and Assessment Program office directly in order to schedule a new mediation date.
Plaintiff has also requested that the Court enter an Amended Scheduling and Trial
Order. Plaintiff’s counsel states that he has conferred with defendant’s counsel and the
parties are in agreement as to the revised dates suggested. The Court will review the
dates proposed by the parties and will issue an Amended Scheduling and Trial Order.
As the parties have now stipulated to the dismissal of the Missouri Highway
Patrol as a defendant in the case, the Court hereby DENIES AS MOOT defendant’s
Motion to Dismiss (Doc. # 10).
Finally, the Court GRANTS Lynnette Lockhart’s Motion to Withdraw as Counsel
as other counsel have entered their appearance for defendant.
Accordingly, for the reasons stated above, the Court hereby DENIES AS MOOT
Defendant’s Motion to Dismiss (Doc. # 10), GRANTS THE MOTION to Withdraw as
Counsel (Doc # 23) and GRANTS IN PART plaintiff’s Motion for Leave to File an
Amended Complaint (Doc. # 26). Plaintiff shall file her Amended Complaint and
Fed.R.Civ.P. 26 disclosures within five (5) days of the date of this Order. Counsel are
directed to contact the MAP Coordinator directly to reschedule the mediation.
Date: August 15, 2017
Kansas City, Missouri
S/ FERNANDO J. GAITAN, JR.
Fernando J. Gaitan, Jr.
United States District Judge
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